No Ex Post
Facto Violation Where Period Had Not Expired When New Law Took Effect, Court
Says

By
DAVID WATSON, Staff Writer

Legislation
that extended the statue of limitations for sex crimes against children—struck
down by the U.S. Supreme Court for crimes as to which the limitations period
had already expired—is constitutional for crimes as to which time was still
running when the law took effect, the First District Court of Appeal ruled
yesterday.

The
court’s Div. Three rejected a claim by Victor Manuel Renderos that applying
Penal Code Sec. 803(g) to him violated the Ex Post Facto Clause of the U.S.
Constitution. Sec. 803(g) extended the six-year limitations period applicable
to sex offenses against minors, allowing later prosecution within one year of
the time a victim reports the offense to a law enforcement agency.

The
high court in Stogner v. California
(2003) 123 S. Ct.
2446 ruled the law could not be constitutionally applied to cases in which the
limitations period had already expired by the time it took effect on Jan. 1,
1994. But Justice Joann C. Parelli said that the court in Stogner “expressly noted its holding did
not affect or otherwise ‘prevent the State from extending time limits—for
prosecutions not yet time barred.’”

The
crimes of which Renderos was convicted occurred between 1992 and 1994, and the
six-year limitations period in Sec. 800 applicable to them had not yet expired
when Sec. 803(g) went into effect, Parelli pointed out.

She
declared:

“[T]he
only consequence of Stogner is
that any enumerated crime must be committed or the limitations period in
section 800—must expire after January 1, 1994 (the effective date of the
statute) in order for the extended one-year period to apply. Because the
limitations period in section 800 for all the offenses charged in this case expired
after January 1, 1994, section 803(g) does not violate any constitutional
provision against ex post facto
laws.”

Parelli
rejected the argument that, because the six-ear statutory period had expired by
the end of 2000 and Renderos was not charged until after his victim came
forward in 2001, Sec. 803(g) was reviving a dead cause of action in violation
of Stogner.

The
justice wrote:

“[F]or
those offenses committed before January 1, 1994, but where the statute of
limitations in sections 800 or 801 had not yet expired as of that date, section
803(g) can be read as ‘extending’ the statute of limitations so that a
prosecution is timely if it is commenced no more than one year after a victim
reports the abuse to an appropriate law enforcement agency. That the People
could not prosecute the action until a report was filed—does not support
Renderos’s contention the statute as applied to him had the effect of
‘reviving’ a prosecution barred by the statute of limitations. Because the
statute of limitations under section 800 had not expired when section 803(g)
became effective on January 1, 1994, section 803(g) permitted the People to
commence prosecution for the offenses within one year after the filing [the]
report of abuse, notwithstanding the limitation period in section 800.”

Oakland
attorney Robert J. Beles of Beles and Beles, who represented Renderos on
appeal, conceded he had some “tough sledding” at oral argument, but said he was
surprised by the outcome.

“I
really thought that basically Stogner
does apply,” Beles said, adding he plans to seek state Supreme Court review
“and if necessary go to the feds on that.”

The
Court of Appeal did not appear to appreciate that there are two prongs to the Stogner analysis, Beles asserted, saying
it was “very clear” that under Stogner’s
second prong the state cannot “revive a dead cause of action.”

He
added:

“I
just think they’re glossing over the fact this is not an extension. Hopefully
I’ll get a better ruling down the road.”

Deputy
Attorney General Gregg E. Zywicke, who represented the prosecution on appeal,
could not be reached for comment late yesterday.